New Law Limits Government Searches of Cell Phones and Other Devices

December 30, 2015

December 2015
Number 82

AUTHOR’S NOTE: Due to the significant legal changes caused by Senate Bill (SB) 178, we recommend that all government agencies, including school districts, contact legal counsel for guidance before searching any electronic devices in the possession of staff or students. Government agencies should further update any relevant policies and procedures, and provide training to all staff whose job functions may include searching the electronic devices of others. SB 178 becomes effective on January 1, 2016.

According to its author, SB 178 was introduced to update existing laws to protect privacy and free speech in the digital age by “instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.” SB 178 responds to an increase in warrantless government demands to cell phone providers and social media websites for the personal data of users. It also codifies two recent court decisions requiring law enforcement to obtain a warrant before obtaining GPS information for vehicle tracking, and before searching data contained on a cell phone seized during an arrest.

Under SB 178, a government entity is prohibited from doing the following:

Compelling production of information directly from a service provider (e.g., AT&T, Verizon);

Compelling production from anyone other than the authorized possessor of the device; and

Accessing information by means of physical interaction or electronic communication with the device (e.g., physically taking the device from the person
and searching it or searching the device by electronic means), except when one of the following applies:

Pursuant to a warrant;

Pursuant to a wiretap order;

With the specific consent of the authorized possessor of the device;

With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;

With a good faith belief that it is required in an emergency to prevent death or serious physical injury;

With a good faith belief that the device is lost, stolen, or abandoned, and only to identify, verify, or contact the device’s owner or authorized
possessor; and

If the device is seized from a correctional inmate or is unclaimed in a correctional facility, except as otherwise prohibited by law.

The new law defines “specific consent” to mean consent provided directly to the government entity seeking information, including when the communication was directed at an audience that included the government entity.

If data is obtained in violation of SB 178, an individual may move to suppress the data in any trial, hearing, or proceeding in which it is introduced as evidence. Furthermore, the Attorney General may commence a civil action to compel a government entity to comply with the new law. Currently, a violation of SB 178 does not carry any criminal penalties.

The full implications of this new law are uncertain for government entity employers as well as school and community college districts. Prior to searching any electronic devices possessed by employees or students, a government entity should contact legal counsel to evaluate how the new law impacts such actions. Government employers may wish to consider providing information or training to staff members who perform searches in the scope of their duties. Additionally, government employers may need to revise policies and procedures to incorporate specific consent as a term and condition of use of the electronic device. For more information, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.